The mental strain of stress at work claims

HR
managers may be relieved at three recent cases in which employees were
unsuccessful in pursuing stress claims. But the news is not all good, says Jill
Kelly.

The key to successful stress at work claims is that it must
be reasonably foreseeable to the employer that its conduct is likely to result
in a stress illness.

In Levy v Allied Dunbar, December 2000, Levy had the
pressure of revalidation of his contract annually. He did not get on with his
line manager and told him that he felt physically sick after some of their
encounters. Because of poor recruitment performance, Levy was put on a lower
basic salary which he could only make up through bonuses if recruitment figures
improved. He left work, suffering from a psychiatric disorder.

The High Court found that, although Levy had suffered a
heart attack, there was nothing that should have alerted the company to his
tendency to suffer from anxiety and depression. Levy did not have an excessive
workload and although his line manager was demanding, his conduct was not
oppressive. On this basis, the company had no liability towards him.

Fraser v State Hospitals Board of Scotland, 11 July
2000,is another case of a claim for psychiatric injury against an
employer, this time brought by a staff nurse, who was in effect demoted as part
a disciplinary process and developed clinical depression. The court held that
disciplinary action might be predicted to cause the employee concerned anger,
depression and anxiety, but the hospital board could not be expected to have
foreseen that it would cause Fraser psychiatric injury, not least because
Fraser never complained of undue stress.

This decision is also a reminder that stress and anxiety
are not, in themselves, psychiatric illnesses and an employee cannot
successfully claim damages unless they are suffering from an actual illness.

The third unsuccessful claimant was Garrett in a claim
against the London Borough of Camden. The Court of Appeal commented that many
people suffer from breakdowns and depressive illnesses and a significant
proportion of them would put at least some of their problems down to the
strains and stresses of their work situation. But unless the employer should
have seen that there was a real risk of breakdown, there can be no liability –
Garrett had never complained of stress.

It should be clear from this that the legal outcome may be
quite different if the employee has complained of stress, because the company
is then put on notice that a psychiatric illness may result.

The position is also very different in discrimination
claims in tribunals. Here, issues of foreseeability and diagnosable illnesses
are no barrier to large awards of damages under the head of “injury to
feelings”. Tribunals will award damages for all loss caused by the
discrimination.

Also look out for claimants bringing psychiatric illness
claims on the back of claims for breach of the duty of trust and confidence.
Such a claim was unsuccessful in Johnson v Unisys, IRLR 703, because it
concerned the manner of dismissal, although that case did open up the
possibility of tribunals making awards for “distress” caused by unfair
dismissal.

But such a claim was successful in the worrying case of Gogay
v Hertfordshire County Council, last year when a residential care worker
successfully brought a claim against her employer for the clinical depression
caused when she was suspended after an allegation of sexual abuse, because the
Court of Appeal found the suspension to be in breach of the duty of trust and
confidence.

Key
points

Employees
cannot bring “standard” claims for stress illnesses unless the illness was
reasonably foreseeable and is a recognised psychiatric illness

An
illness may become foreseeable if the employee complains of stress

There
are no such barriers to employees getting compensation for “stress” in discrimination
claims

Watch
out for stress claims for breach of trust and confidence and unfair dismissal

Jill
Kelly is a partner with Tunbridge Wells law firm, Thomson, Snell and Passmore